T.K. Kamala and Others vs A.R. Thulasi Rao

A. Ramamurthi, J.—The plaintiffs in O.S. No. 10309 of 1987 on the file of VII Assistant Judge, City Civil Court, Madras, have preferred

the Second Appeal aggrieved against the judgment and decree made in A.S. No. 258 of 1995 dated 24-06-1996 reversing the judgment and

decree of the trial Court dated 30.06.1994. The case in brief is as follows:- The plaintiffs filed a suit for partition and separate possession of their

1/3rd share in the suit property and also claimed past and future damages. The suit properly originally belonged to one Ramaiyer and he got the

same under the partition deed dated 19.05.1967. The said Ramaiyer died intestate on 08.03.1969 leaving behind the plaintiffs (daughters) and the

defendant (son) as legal heirs. They are each entitled to 1/3rd share in the property. The defendant is residing in a portion of the property and the

other portions have been rented out to 3 tenants on a monthly rent. The defendant alone is collecting the rents and the plaintiffs are deprived of

their legitimate share. In spite of repeated demands and legal notice, partition was not effected. The suit properly is yielding a monthly rent of Rs.

385/- and the plaintiffs are claiming a sum of Rs. 5,040/-towards past mesne profits. Hence, the suit.

The defendant admitted the relationship of the parties, but stated that the plaintiffs are entitled to only 1/6th share of the property under Hindu

Law since the property is ancestral one. There are only 3 tenants and one portion is lying vacant and the total rent collected is only Rs. 150/- per

month. The notice issued by the plaintiffs has been suitably replied. The plaintiffs are not entitled to any mesne profits. The suit is also not

maintainable as the property is under valued. There is also a charge decree against these properties as ordered in O.S. No 732 of 1971 on the file

of City Civil Court, Chennai for a sum of Rs. 8600/-. The plaintiffs are liable to pay their share. The defendant also spent considerable amount

towards funeral expenses of the parents and also towards discharge of mortgage debts and the plaintiffs are bound to pay their due share before

claiming partition. He is also paying the house lax and the plaintiffs are bound to pay their share. Further, the plaintiffs are not entitled to claim

partition since the extent of the suit property is only 1200 sq.ft. and each plaintiff is entitled to 200 sq.ft. and division of the suit properly by metes

and bounds is impossible. He is willing to give their legitimate share of 1/6th share each in cash subject to their liability for the expenditures already

incurred.

The trial Court framed 4 issues and on behalf of the plaintiffs. P.W.1 was examined and Exs.A-1 to A-6 were marked and on the side of the

defendant, D.W.1 was examined and Exs. B-1 to B-18 were marked. The trial court granted a preliminary decree for partition of the suit

properties into three shares and allot one share each to the plaintiff and the mesne profits are left open to separate proceedings. The defendant

preferred A.S.258 of 1995 on the file of III Additional Judge, City Civil Court, Chennai and the learned Judge after hearing the parties, modified

the judgment and decree of the trial Court and directed partition of the properties into 6 shares and allot 2 shares to the plaintiffs and 4 shares to

the defendant and the plaintiffs are entitled to get the value of two shares. Aggrieved against this, the plaintiffs have come forward with the present

Second Appeal.

At the time of admission of the Second Appeal, the following substantial question of law was framed by this Court for consideration:

Is the lower appellate Court correct in holding that the entire suit property is ancestral in nature to the respective parties in the suit in the light of

Ex.A-1 the partition deed dated 19.05.1967?

Heard the learned counsel of both sides.

There is no dispute that the suit property belonged to one Ramaiyer with absolute power of alienation under a Deed of Partition dated

19.05.1967. The said Ramaiyar died intestate on 08.03.1969 and admittedly, the plaintiffs and the defendant are the legal heirs. The plaintiffs

claimed each 1/3rd share in the properties, but the defendant contended that the property is an ancestral one and, as such, each plaintiff is entitled

to get only l/6th share in the property. Apart from that, the defendant had met the funeral expenses and also discharged number of earlier debts and

the plaintiffs are bound to pay their due share before claiming partition of the property. It is further stated that the plaintiffs cannot claim partition of

the property considering the fact that the total extent is only 1200 sq.ft. and if that be so, each plaintiff is entitled to get only 200 sq.ft. and, as such,

they can be directed to get the value of the same.

The trial Court granted preliminary decree for partition of the property into 3 shares and to allot one share to each of the plaintiff and the same

was modified by the lower appellate Court directing the property to be divided into 6 equal shares and the plaintiffs are each entitled to one share

and for which, the plaintiffs can be directed to get the value of the same. Learned counsel for the appellants / plaintiffs contended that the suit

property is not the ancestral property and us such, the lower appellate Court ought to have confirmed the preliminary decree of the trial Court. The

property originally belonged to the grandmother of the plaintiffs and it will not be an ancestral one. Even according to the partition deed dated

19.05.1967, the parties admitted that they were only co-owners and as such the same cannot be treated as a joint family property. The property

also fetched rental income and as such, the alleged discharge of the loan could have been met only out of the said income. Section 23 of the Hindu

Succession Act will be a bar only if the property is in the exclusive possession of the male member. Since admittedly the property is in the

occupation of the tenants, the claim of the respondent invoking Section 23 is not correct. Even assuming that the superstructure was constructed by

the grandfather of the parties, the same should be treated only as a gift in favour of the grandmother of the parties.

Reliance is placed upon a decision of the Apex Court in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others ((1986)

3 SCC 567) for the proposition that normally whenever the father gets a property from whatever source, from the grandmother or from any other

source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson

and other members who form joint Hindu Family with him. But this position has since been affected by Section 8 of the Hindu Succession Act.

Since the Preamble to the Act reiterates that the Act is to ''amend'' and codify the law and Section 4 thereof makes it clear that one should look to

the Act in case of doubt and not to the pre-existing Hindu Law, the express words of Section 8 of the Act would prevail over the aforesaid general

law. When therefore, son inherits the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family

but takes it in his individual capacity.

It has also been held in Narasimaha Murthy v. SMT. Susheelabai and Others (1996 - 2 L.W. 386) that Section 23 of the Hindu Succession Act

is inapplicable where a house is let out to a tenant and is therefore, not a ""dwelling house"".

Learned counsel for the respondent also relied on Baby Ammal v. Rajan Asari (1997 - 2 L.W. 453) for the principle that for a gift u/s 122 of

Transfer of Property Act, proof of delivery of possession and acceptance is necessary. In the absence of any acceptance, the document cannot be

construed as a gift, but it can be considered only as a licence.

There is no dispute that the plaintiffs are the legal heirs of the deceased. Although it is stated that the property is an ancestral property, it has

not been substantiated by the defendant. There can be a presumption that the family continues to be joint, but there cannot be any presumption that

the property possessed by the family should be a joint family property. The plaintiffs being daughters of the deceased are also Class I heirs and

entitled to inherit the property along with the son in the absence of the proof that they are ancestral properties. So far as this case is concerned, the

defendant failed to establish that it is the ancestral property and under the circumstance, I am of the view that the plaintiffs as well as the defendant

are each entitled to l/3rd share in the property.

Learned counsel for the respondent defendant contended that the entire extent of the property is only 1200 sq.ft. and if divided, it cannot be

conveniently enjoyed by the parties and, as such, the plaintiffs can be directed to get the value of the same. I am of the view, that it is a matter to be

considered only at the time of the final decree proceedings. So far as this case is concerned, what is the legal share due to the plaintiffs alone has to

be declared.

Learned counsel for the respondent / defendant further stated that he had discharged number of debts and also met the funeral expenses of his

parents and the plaintiffs before getting their due share in the property are liable to pay their share also. It is admitted that the property was rented

out to 3 tenants and the rents were collected only by the defendant. In the present case, the plaintiffs have also claimed the relief of mesne profits

and when once the plaintiffs are entitled to get the share in the property, the question of mesne profits has to be decided in a separate proceedings.

There is a duty cast on the defendant to render accounts relating to the income from the property and if any amount is due towards any legally

enforceable debt, then the plaintiffs are bound to pay the same. I am of the view that the liability payable by the plaintiffs also can be considered in

the final decree proceedings. Moreover ,no evidence has been let in on the side of the defendant to prove about the discharge of earlier debts and

as such it is just and proper to be left open to final decree proceedings.

Learned counsel for the respondent / defendant next took shelter u/s 23 of the Hindu Succession Act and claimed that the plaintiffs are not

entitled to claim the partition of the dwelling house. Section 23 of the said Act is extracted as follows:-

Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property

includes a dwelling-house wholly occupied by members of his"" or her family, then notwithstanding anything contained in this Act, the right of any

such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the

female heir shall be entitled to a right of residence therein:

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling - house only if she is unmarried or has

been deserted by or has separated from her husband or is a widow"".

It is therefore clear from the language employed u/s 23, if the dwelling house is occupied by any male member of the house, then naturally the

right of female heir to claim partition of the dwelling house has to wait until the male heirs chose to decide their respective shares therein. However,

the female heir shall be entitled to a right of residence. In the present case, admittedly the property was rented out to third parties. The defendant

also in the written statement stated that 3 tenants are occupying the property and one portion is lying vacant. There is no pleading in the written

statement that the defendant is occupying one portion of the property and, as such, the plaintiffs are not entitled to claim partition of the dwelling

house in view of Section 23 of the Hindu Succession Act. Considering the fact that the defendant is not in occupation of any portion of the dwelling

house, I am of the view, Section 23 of the Hindu Succession Act cannot be applied to the case on hand and, as such, the plaintiffs are entitled to

claim partition. It is stated that the property was inherited only from the grandmother and even assuming that the superstructure was put up by the

grandfather, it cannot be concluded that it is an ancestral property. Under the circumstances, there is no difficulty in coming to the conclusion that

the plaintiffs as well as the defendant are entitled to claim equal share in the property. So far as the liabilities and mesne profits are concerned, it

can be left open to separate proceedings.

Unfortunately, the lower appellate Court misdirected itself and came to the conclusion without any basis that the suit property is an ancestral one

and reduced the share of the plaintiffs. When the finding of the lower appellate Court is not based on sound legal positions and on erroneous

appreciation of law, interference is called for. For the reasons stated above, the Second Appeal is allowed and the judgment and decree of the

lower appellate Court are set aside and the judgment and decree of the trial Court are restored. However, there will he no order as to costs.

Consequently, C.M.Ps. No. 16439 and 16440 of 1996 are closed.